Video Surveillance in Nursing Homes – Consider the Risks

Easy access to video technology and media reports of abuse and neglect in nursing homes may lead family members to place surveillance cameras in the rooms of their loved ones. Only Oklahoma, pursuant to Okla. Stat. § 63-1-1953.6, New Mexico, and Texas explicitly permit a nursing home resident or the resident’s legal representative to place surveillance cameras in a resident’s room. These statutes allow monitoring only if certain requirements are met, such as obtaining consent from the resident or the resident’s representative, and from the resident’s roommate. The majority of states (and the federal government) do not have laws explicitly permitting or forbidding resident monitoring.

In the absence of state statutory guidance, if a nursing home decides to allow a family member to video-record a resident, the nursing home should consider the following issues to ensure the recording does not violate a resident’s privacy and rights under the Health Insurance Portability and Accountability Act (HIPAA), or violate any state laws, such as invasion of privacy, eavesdropping, or wiretapping.

Consent: Has the resident, if competent, consented to the recording? If the resident is not competent, has the resident’s medical power of attorney or guardian consented? Nursing homes should consider how to document consent, such as in the resident’s chart or on a consent form. Failure to obtain consent could result in violation of the resident’s privacy and HIPAA rights.

Roommate: If the resident has a roommate, the roommate likely will end up on the video. Facilities should consider whether to obtain proper consent from the roommate, as discussed above, or only allow video-recording in the absence of any roommate.

Visitors: Facilities should consider whether visitors should be notified that video-recording is occurring to avoid violating the privacy rights of visitors, who could include other facility residents. For example, the facility could post a sign on the resident’s door indicating that recording is in progress.

Other residents: Facilities should consider how the video-recording device is aimed and whether it records sound or images from the hallway or resident care areas. Again, recording video of the hallway or other resident care areas could violate the privacy and HIPAA rights of other residents. While it is easier to aim the video-recording device into the room to avoid hallway images, it is difficult to ensure that hallway conversations are not recorded. Thus, facilities should consider whether to forbid any audio on the video.

Violation of specific state statutes: Depending upon the state, video-recording could result in criminal invasion of privacy or a violation of eavesdropping or wiretapping statutes. For example, in Colorado a person commits criminal invasion of privacy under C.R.S. § 18-7-801 if that person knowingly observes or takes a photograph (including video) of another person’s “intimate parts” without consent where the person photographed has a reasonable expectation of privacy. Also in Colorado, a violation of C.R.S. § 18-9-304, the eavesdropping statute, can occur if a person not visibly present during a conversation or discussion knowingly overhears or records the conversation or discussion without the consent of at least one of the principal parties to the conversation. Thus, if the resident does not consent or if another resident is picked up on the audio portion of the video without consent, this could constitute illegal eavesdropping. Nursing homes should examine specific state statutes relating to invasion of privacy, eavesdropping, and wiretapping.

Facility administrators should carefully consider the risks of video-recording and address the concerns listed above before allowing it to occur. While this discussion focused on nursing homes, it applies equally to other health care facilities such as assisted living facilities and hospitals.

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